Johnnie Bernal

Published 6:30 am, Tuesday, March 1, 2005

Johnnie Bernal was riding around north Houston with four friends the night of Aug. 18, 1994, sitting in the passenger's seat as they looked for girls and sniffed paint. The group pulled into an icehouse parking lot where a foursome of friends stood talking around 12:15 a.m. Someone in the car pointed a gun out the passenger-side window and demanded money.

The group in the car sped off and began to disband. At the end of the night, Bernal went home with a .357 Smith & Wesson revolver and 11 .38-caliber Special hollow-tip lead bullets.

Police and prosecutors say Bernal had the gun all night and shot Dilley. But Bernal and his lawyer say he found the gun, which belonged to Juan Reynoso, a 14-year-old known as Little Gangster, in the back seat. Bernal said he took it home because he lived near Reynoso and planned to return it.

Bernal never saw Reynoso after the shooting because Reynoso left immediately for Mexico. So, when police came to serve an arrest warrant 12 days later, kicking in Bernal 's bedroom door, he had both the gun and bullets in a drawer.

Though Bernal maintained he did not kill Dilley, he assumed the revolver he had was the one used in the shooting. He and his current lawyer, Rosenberg, now believe there was likely a second gun in the car, possibly a 9 mm that Reynoso was known to carry. The bullets recovered could have been used in a 9 mm or in a .357. Bernal and his lawyer have filed an appeal.

Bernal 's court-appointed trial attorney never hired an independent firearms expert, though money was allocated, and the ballistics work of HPD's Robert Baldwin played a critical role at trial.

Baldwin testified that the .357 revolver matched the bullet that killed Dilley, and in open court, without objection from Bernal 's lawyer, described the methods he used to obtain that match - methods that others in the field say were inappropriate.

Although several firearms examiners say most ballistics tests require no more than three shots, Baldwin testified that he shot the revolver 25 times before he found one bullet that matched the bullet from Dilley.

Baldwin testified that he "did use the 11 cartridges that were submitted as well as additional cartridges beyond that." He said he shot all of the bullets found in Bernal 's drawer and then fired two of his own, still not getting a match.

At that time, Baldwin testified, he cleaned the barrel of the gun with a solvent - another inappropriate step according to firearms examiners. After cleaning the gun, Baldwin shot an additional 12 bullets and finally obtained a match.

"I didn't even snap to it," Bernal said from death row last week. "They had someone shoot it 25 times, and my lawyer never even had someone shoot it once."

Prosecutors relied on Baldwin's testimony to add weight to their case, which otherwise contained the evolving stories of people in the car with Bernal and eye-witness identifications that conflicted with the original description of the shooter.

During his closing argument, prosecutor Wisner, who tried the case with Johnny Sutton, noted that two of Dilley's friends identified Bernal . Wisner sealed his argument by citing "the third huge piece of corroboration that the defendant is arrested with the murder weapon."